Author: Saul Leal Vice-Chancellor Postdoctoral Fellow, Institute for International and Comparative Law in Africa (ICLA)

Leopold Sedar Senghor said: emotion is African.[1] This emotion has been channeled to constitutions. Happiness is a core value in many African constitutions. It was explicitly mentioned in Liberia, Namibia, Ghana, Nigeria, Swaziland, and Egypt.

Article 1 of the Constitution of Liberia, 1986, proclaims that all free governments are instituted by the people’s authority, for their benefit, and they have the right to alter and reform it when their safety and ‘happiness’ require it.[2] The preamble of the Egyptian Constitution, 2014, cites ‘a place of common happiness for its people’. The Namibian Constitution, 1990, assures the right ‘to the pursuit of happiness’. In this regard, Frederick Fourie defends the preamble of the Namibian Constitution, explaining that it is coloured by the struggle against colonialism and racism; that it is built around the denial of the ‘right of the individual life, liberty and the pursuit of happiness’ by colonialism, racism and apartheid.[3]

Article 36(1) of the Constitution of Ghana, 1992, assures that the State shall take all necessary action to ensure that the national economy is managed in such a manner as to maximize the rate of economic development and to secure the maximum welfare, freedom, and ‘happiness’ of every person in Ghana.[4] The Constitution of Nigeria, 1999, assures that the State shall control the national economy in such manner as to secure the maximum welfare, freedom, and ‘happiness’ of every citizen on the basis of social justice, equality of status, and opportunity (article 16(1)(b)).[5] This provision imitates article 16(i)(a) of the Nigerian Constitution of 1979.[6]

In Swaziland, the preamble of the Constitution (2005) envisages the guarantee of peace, order, and good government, as well as the ‘happiness’ and welfare of all people. Article 59(1) states that ‘the State shall take all necessary action to ensure that the national economy is managed in such a manner as to maximize the rate of economic development and to secure the maximum welfare, freedom, and happiness of every person in Swaziland; and to provide adequate means of livelihood and suitable employment and public assistance to the needy’.[7]

It seems to be evident that the colonization of African countries left a heritage of a profound and ingrained sense of repulsion against any form of economic exploitation. This is what Steve Biko refers to as ‘capitalistic exploitative tendencies’.[8] The latent economic exploitation maintained throughout African history brought about a form of collective trauma; the reaction to which is evident in the aforementioned constitutional provisions. It is a way to say ‘never again’.

From theoretical and jurisprudential perspectives, it is of paramount importance to insist in the excavation of the root of the ubiquitous phenomenon of the constitutionalization of happiness. In this regard, Christopher Mbazira[9] argues that ‘courts have to consider interests other than those of the parties before them. In this context, actions, policies, and institutions are judged in terms of the extent to which they maximize overall happiness and wellbeing’.[10] This new frontier starts to spark refined theoretical discussions among scholars where the scholars are able to articulate the multitude of approaches linked to happiness, and to add a new horizon to the global doctrine.

David Bilchitz utilizes the utilitarian doctrine to assess the effects of the Nokotyana v. Ekurhuleni Metropolitan Municipality case[11], held by the Constitutional Court. He explains that ‘a strict focus on equality in the context of scarce resources can also minimize the overall happiness of individuals’.[12] By the same token, Stu Woolman commented on the Garvis v SATAWU (Minister for Safety & Security, Third Party) case,[13] affirming that ‘whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their Safety and Happiness’. After citing the Declaration of Independence of the United States, Woolman affirmed that ‘one might as well flatly state that the constitutional order said to protect the security, safety, and pursuit of happiness of poorly paid labourers does nothing of the sort’.[14]

This approach introduces the concept that unites happiness and the utilitarian doctrine, along with debates on constitutional issues, as an erudite way to deal with hard cases. Justice Albie Sachs stated that he believed that the establishment, by the Constitution of South Africa, of the Constitutional Court, ‘brought a lot of happiness and a lot of emancipation to many people’.[15] At the Constitutional Court of South Africa, Justice Sachs examined the meaning of the expression ‘freedom and security of the person’, explaining that ‘another jurisprudentially controversial matter has been whether the words should be considered as applying only or mainly to the absence of physical constraint or whether it should be regarded as having the widest amplitude and extend to all the rights and privileges long recognized as central to the orderly pursuit of happiness by free men and women’.[16]

By the same token, Justice Kate O´Regan quoted Justice Brandeis in his concurrence in the case of Whitney v California[17] which was heard in the US Supreme Court. Brandeis stated that ‘those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty’.[18]

The right to happiness still needs to find global constitutionalization, theorization, and judicialization, but Africa’s commitment to this fundamental value opens the door for global discussions and investigations into the application of this aforementioned constitutional provisions.

[4] See chapter VI (The Directive Principles of State Policy) of the Constitution, establishing economic objectives.

[5] See chapter II (Fundamental Objectives and Directive) of the Constitution, establishing the Principles of State Policy.

[6] Rjeai ‘The New Constitution of Nigeria’(1979) 23 J. Afr. L. 131. Article 16(i) of the 1979 Constitution provides that ‘The State shall, within the context of the ideals and objectives for which provisions are made in this Constitution – (a) control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizens on the basis of social justice and equality of status and opportunity’.

[7] Maseko ‘The Drafting of the Constitution of Swaziland” (2008) 2005 African Human Rights Law Journal 312. Human Rights lawyer, Thulani Maseko, explains the constitution-making process in Swaziland as follows: ‘Who are the people? Who is the nation? This is precipitated by the fact that, more often than not, African leaders refer to and purport to do things for and on behalf of their “people” or the “nation”, even if the decisions they take are detrimental to the very people they lead. This is significant in the context of Swaziland because, when the 1968 Independence Constitution was repealed, the King supposedly acted for and with the full consent of the Swazi people: [T]hat I and my people heartily desire at long last, after a long constitutional struggle, to achieve full freedom and independence under a constitution created by ourselves for ourselves in complete liberty without outside pressures; as a nation we desire to march forward progressively under our own constitution guaranteeing peace, order and good government and the happiness and welfare of all our people’. See also chapter V (Directive Principles of State Policy and Duties of the Citizen) of the Constitution, establishing the discipline of ‘economic objectives’.

[8] S Biko I write what I like: A selection of his writings (ed. A Stubbs) (Johannesburg, 2015) at 107.

[9] Bilchitz ‘Judicial Remedies and Socio-Economic Rights: A Response to Christopher Mbazira’ (2008) 9 ESR Review 1. Bilchitz argues that ‘there are different theories as to what distribution of resources may be regarded as just. It is not accurate to see all forms of distributive justice as premised upon utilitarian theory. Rather, utilitarianism is a particular theory of distributive justice which defines a just distribution as one which produces the greatest amount of happiness (or utility) for the greatest number’.

[11]Nokotyana v. Ekurhuleni Metropolitan Municipality (CCT 31/09) [2009] ZACC 33; 2010 (4) BCLR 312 (CC) (19 November 2009) The applicants are members of the Harry Gwala Informal Settlement, situated on the eastern edge of Wattville Township. They approached the High Court for an order against the Ekurhuleni Metropolitan Municipality to install (1) communal water taps, (2) temporary sanitation facilities, (3) refuse removal facilitation and (4) high-mast lighting in key areas, pending a decision by the Member of the Executive Council for Local Government and Housing, Gauteng (MEC), on whether the Settlement is to be upgraded to a formal township. In a unanimous judgment by Van der Westhuizen J, the Court held that the High Court was correct to find that Chapters 12 and 13 of the National Housing Code are not applicable, as the former deals with emergency situations and the latter with upgraded townships. The Court held that it would not be just and equitable to make an order benefitting only those who caused sufficient embarrassment to the authorities by litigation to motivate them to assist and not the many others in a similar situation. The MEC was thus ordered to take a final decision on the application to upgrade the status of the Settlement within 14 months of the date of the order.

About the Author:Saul Leal was recently awarded by the University of Pretoria with the Vice-Chancellor Postdoctoral Fellowship, to be conducted at the Institute for International and Comparative Law in Africa (ICLA). He was a visiting researcher at the University of Cape Town and at SAIFAC (the South African Institute for Advanced Constitutional, Public, Human Rights and International Law). In Brazil, he translated into Portuguese the book ‘The Strange Alchemy of Life and Law’, by Albie Sachs, winner of the 2010 Alan Paton award.